Arvind @ Vicky And Others vs State Of H.P.

Virender Singh, J

The above-titled applications have been filed by the applicants, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’), for releasing them on bail, during the pendency of trial, in case FIR No. 77 of 2023, dated 9th May, 2023, registered with Police Station Jhakri, District Shimla, H.P., under Sections 452, 354, 354D, 506 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’)

The applicants have sought the relief of bail, on the ground, that the allegations leveled against them, in the FIR, are false as they have nothing to do with the offences, for which, they have arrested by the police.

The applicants have tried their luck by moving applications under Section 439 CrP.C before the learned Additional Sessions Judge, Fast Track Special Court (RAPE/POCSO), Kinnaur at Rampur, however, their applications have been dismissed vide order dated 22.07.2023.

Asserting the fact that they are innocent persons and permanent resident of District Shimla, the applicants, through their counsel, have given certain undertakings, for which, the applicants are ready to abide by, in case, released on bail, during the pendency of the trial.

When put to notice, the police has filed the status report disclosing therein that the child victim along-with her parents appeared before the police of Police Station, Jhakri and moved a complaint disclosing therein that she is the resident of the address mentioned in the application and studying in +2 class in school ‘X’. About 10-15 days ago, applicant Vicky came to his house. At that time, no-one was there. He has requested the child victim to prove her mobile phone and also said to her that he wants to solemnize marriage with her, upon which, she has replied that the applicant is like his brother. Thereafter, applicant Vicky had caught hold the child victim from her hand and started touching her. The child victim get herself freed and came out of the kitchen. However, the child victim has not disclosed this fact to her parents.

On 08.05.2023, when she was going to school, applicants Vicky and Vishal came there on bike and started making obscene gestures to the child victim and also blowing whistles. Lastly, she has apprehended danger from these two persons and requested that action be taken against them.

On the basis of above facts, the police has registered the FIR in question and criminal machinery swung into motion. The child victim was produced before the learned Additional Chief Judicial Magistrate, Rampur for recording her statement under Section 154 Cr.P.C.

On 10.05.2023, the bail applicants were arrested at about 6.40 p.m. The applicants are presently in judicial custody.

In the status report, the details of cases registered against applicant Vicky is given, which is reproduced as under:-

FIR No. 69/2018 dated 23.07.2018 under Sections 354, 452, 341, 323, 34 IPC.

FIR No. 28/2023 dated 11.02.2023 under Sections 341, 323, 34 IPC.

FIR No. 73/2018 dated 04.05.2023 under Sections 341, 323, 504, 506, 34 IPC.

FIR No. 141/2020 dated 25.09.2020 under Sections 341, 323, 504, 506, 34 IPC.

FIR No. 173/2018 dated 27.11.2018 under Sections 353, 332, 34 IPC.

Similarly, the details of cases registered against applicant Vishal is given, which is reproduced as under:-

FIR No. 69/2018 dated 23.07.2018 under Sections 354, 452, 341, 323 IPC.

FIR No. 73/2018 dated 04.05.2018 under Sections 341, 323, 504, 506, 34 IPC.

FIR No. 173/2018 dated 27.11.2018 under Sections 353, 332, 34 IPC.

It has also been submitted, in the status report that all the cases are still under consideration.

After completion of investigation, report under Section 173(2) Cr.P.C has been submitted against the applicants under Sections 452, 354, 354D, 506 read with Section 34 IPC and Section 8 of the POCSO Act.

Lastly, it has been apprehended that keeping in view the number of cases registered against the applicants, in case, they are released on bail, they may again commit the similar offence and may also coerce the child victim. As such, prayer to dismiss the bail applications has been made.

Firstly, coming to the fact that number of criminal cases registered against the applicants is concerned, mere registration of cases does not take away the presumption of innocence, which is still available to them. The person is presumed to be innocent unless or until held guilty by the competent Court of law. Mere pendency of cases cannot be taken as an adverse fact against the applicants.

The applicants are permanent resident of District Shimla, as no apprehension has been expressed by the police that in case, they are released on bail, they may not be available during the trial. The apprehensions expressed by the police are unfounded, as for those apprehensions, reasonable conditions can be imposed.

The investigation, in the present case, is complete and the State has demonstrated this fact by asserting that the challan has been filed against the applicants and the case is now fixed for PWs on 24.08.2023.

The applicants are admittedly in judicial custody and no useful purpose would be served by keeping them in judicial custody for indefinite period, as pre-trial punishment is prohibited under the law.

The role allegedly played by the applicants, in the commission of the offences, will be proved, during the course of trial. The chances of commencement and conclusion of trial in near future are not so bright.

Considering all these facts, this Court is of the view that the bail applications are liable to be allowed and is accordingly allowed.

The applicants are ordered to be released on bail in case FIR No. 77 of 2023, dated 9th May, 2023, registered with Police Station Jhakri, District Shimla, H.P., under Sections 452, 354, 354D, 506 IPC and Section 8 of POCSO Act, on their furnishing personal bail bond, in the sum of Rs. 50,000/-, with two sureties each, out of which one surety should be local, to the satisfaction of learned Special Judge, Kinnaur at Rampur Bushahr, District Shimla, H.P. This order, however, shall be subject to the following conditions:

a) They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) They shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail applications.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicants.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Shimla through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Shimla is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Shimla is further directed that if the applicants fail to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.